Tag: The Practical Employer

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NLRB Asks for Help to Overturn Some Foul-Mouthed Bad Decisions

Jon Hyman The Practical Employer

Editor’s note: This post contains extremely graphic language in the context of the case described here.

“Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!”

“Hey, did you bring enough KFC for everyone?” “Go back to Africa, you bunch of fucking losers.” “Hey anybody smell that? I smell fried chicken and watermelon.”

You’d think that if any of your employees lobbed any of these bombs at a supervisor or coworker, you’d have no legal issue if you fired them. And you’d be right … usually.

Except, in the first example, the employee ended his obscene tirade with, “Vote YES for the UNION!!!!!!!”

The latter example was directed by striking workers walking a picket line to African-American replacement workers crossing that picket line. According to the National Labor Relations Board, the employees’ rights to engage in protected concerted activity trumps all.

The NLRB, however, might be changing its mind on these rules. Last week, the agency invited briefs on the issue of how far the law should go to protect profane or obscene workplace statements.

The National Labor Relations Board requests briefing on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature. In a notice issued today, the Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA).

In the specific case at issue, a union committeeperson, while arguing about employee cross-training, told a supervisor that he did not “give a fuck about [his] cross-training” and that he could “shove it up [his] fucking ass.”

Specifically, the board is looking for input on five issues:

  1. Under what circumstances should profane language or sexually or racially offensive speech lose the protection of the Act?
  2. How much leeway should employees engaged in section 7 activity be given, when their language if profane or otherwise offensive to others on the basis of race or sex?
  3. Should the Board continue to consider the norms of the workplace, particularly whether profanity is commonplace and tolerated, in judging the legality of these profane or obscene outbursts?
  4. To what extent, if any, should the Board continue to consider context — e.g., picket-line setting — when determining whether racially or sexually offensive language loses the Act’s protection?
  5. What relevance should the Board accord to anti-discrimination laws such as Title VII in determining whether an employee’s statements lose the protection of the Act?

I find all of the examples above to be abhorrent. The NLRB’s current rules require employers to suborn the worst degree of insubordination, or permit horrific racial or sexual harassment, all in the name of “protecting” employees section 7 rights under the NLRA.

These rules must change, and I am very optimistic that the board will craft a much fairer and equitable rule on this issue.
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Why ‘Ban the Box’ Doesn’t Work for Employers or Employees

Listen this clip from Ear Hustle (a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration”), and then let’s chat about “ban the box.”

Last month, the 5th Circuit Court of Appeals upheld an injunction which blocked the EEOC’s guidance on criminal background checks is unlawful, and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which in that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because African-Americans and Hispanics are incarcerated at a rate significantly higher than whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly labeled after the “box” applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted these laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated in the Ear Hustle clip above, all that “ban the box” accomplishes is moving the criminal background check from the application stage to the formal background check stage. Employers that are pre-disposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes; they are just giving felons false hope.

Moreover, according to two recent studies, ban the box laws are causing more racial discrimination by improving the hiring prospects for Caucasians, while making them worse for African-Americans and Hispanics.

Thus, if ban the box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest) or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

    1. Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.
    2. Tax credits to incentivize businesses to hire these felons.
    3. A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., we still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).
We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support. If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.
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What Sex Discrimination Will Look Like if the DOJ Legalizes Sex Stereotyping

Last week the Department of Justice (on behalf of its client, the EEOC), filed a brief asking the Supreme Court to conclude that “sex stereotyping by itself is not a Title VII violation.”

What might this look like if the DOJ gets its wish?

Consider the following story (as told on Reddit).

I’m a 21 year old female. I feel like I should say these thing about myself because these are usually what people ask or say when they find out I rarely shave my legs. I’m straight, I’m very feminine, and I just don’t like to waste my time or money on shaving my legs. Also I’m not a hairy person at all! …

[T]oday I had to go into the office to grab some materials and my boss was there in his office so I stopped to say hi before I left out. …

My boss then proceeded to tell me that a few people complained I didn’t shave my legs and they said it went against company policy that I wasn’t being hygienic. I was even more shocked.

I cannot fathom a Title VII under which an employer can enforce a workplace rule prohibiting hairy legs against women but not men. Yet, that’s the world in which we might live if the Supreme Court legalizes “sex stereotyping.”

The DOJ argued in its brief that “sex stereotyping is actionable only to the extent it provides evidence of favoritism of one sex over the other,” and that it “does not excuse the plaintiff from the fundamental requirement of proving that the defendant treated members of one sex less favorably than similarly situated members of the opposite sex.” Otherwise, says the DOJ, “countless sex-specific policies would be per se unlawful as based on sex stereotypes, “ such as a “dress code that required men to wear neckties.”

But isn’t that the very point of prohibiting sex-based stereotypes at work. The stereotype itself is the “evidence of favoritism of one sex over the other.” It is the proof that the employer “treated members of one sex less favorably than similarly situated members of the opposite sex.”

Also read: #MeToo Hasn’t Killed the Office Romance, Just the Inappropriate Ones

An employer that prohibits women, but not men, from wearing neckties is acting on a sex-based stereotype that a necktie is men’s attire, and not women’s attire. Similarly, an employer who requires women to shave their legs, while letting men grow it au naturel, acts on a sex-based grooming stereotype for no reason other than gender. The application and enforcement of a sex-based stereotype to the detriment of one sex over another is the “evidence of favoritism of one sex over the other.” No other proof should be necessary.

I am hopeful that the Supreme Court does right by LGBTQ employees and holds that Title VII’s prohibition against sex discrimination implicitly covers LGBTQ discrimination. If, however, these cases go the other way, I pray that the Court does not take the DOJ’s bait and rewind women’s rights by five or six decades.

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Is It Legal to Dock the Pay of Employees Who Skip a Political Rally Being Held in the Workplace?

Jon Hyman The Practical Employer

Has an employer violated the law if it docks the pay of an employee who skips a speech being given by President Donald Trump in their place of employment?

Over the weekend news broke of a Pennsylvania employer who had an interesting way to influence its employees’ attendance at a rally Trump was holding at their place of employment during the work day. Only pay those employees who show up.

“NO SCAN, NO PAY,” a supervisor wrote to his employees.

While attendance at the rally wasn’t mandatory, the employer told its employees that they would only be paid for the work day if they attended. Otherwise, they had the option to take a PTO day or take the day off excused and without pay.

While it sounds terrible to withhold pay for employees who choose not to attend a political event during the work day, just because it’s terrible doesn’t make it illegal.

Indeed, in all likelihood, there is nothing illegal about this practice. That said, I can envision a few arguments that could give this employer trouble.

1. You might jeopardize an exempt employee’s overtime exemption. One of the cornerstones of the FLSA’s exemptions is that the employee must be salaried. By definition, a salaried employee receives the same predetermined amount of money for each week worked. Employers can jeopardize exemptions by docking employees’ pay for hours or days missed from work. If an employer reduces an employee’s pay for hours or days missed in a week, the employee is not receiving a standard predetermined amount for all work performed during the week, and therefore no longer salaried. If an employee is not salaried, he or she cannot be exempt. Exemptions are bad things to lose, because it would make an employee eligible for overtime. Thus, paying an employee four-fifth’s of his or her salary for a four-day work week might jeopardize that employee’s exemption.

2. You operate in one of the few jurisdictions in which political affiliation discrimination is illegal. “Political affiliation” is not a protected category protected by any federal law. Still there are a few states that protect it under their own anti-discrimination laws. In California, for example, an employee docked because he or she chose not to attend a rally of a politician they did not support would have a cognizable claim for political affiliation discrimination.

3. You’ve violated an employee’s right under section 7 of the National Labor Relations Act to engage in protected concerted activity. Private employers cannot prohibit discussions by and among employees about wages, benefits, and other terms and conditions of employment. Therefore, if employees skip the Trump rally as part of a mass protest over how his policies impact the workplace, then it might be unlawful for their employer to dock their pay as a result.

Legal or illegal, however, you need to ask yourself whether coercing employees’ attendance at a political event is a legitimate business practice. How you answer the question of whether you think it’s OK to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes.

I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.
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The Law Is a Floor, Not a Ceiling: Granting FMLA for Individualized Education Program Meetings

Jon Hyman The Practical Employer

Last week, the Department of Labor issued an opinion letter [pdf] making clear that covered employers must provide intermittent FMLA leave to eligible employees who need time away from work to attend meetings to discuss the Individualized Education Program (IEP) of the employee’s child.

Rather than discuss the opinion letter in detail, I’ll instead direct you my blogging friends — Jeff Nowak, Suzanne Lucas, and Eric Meyer — each of whom covered this story over the past few days.

Instead, I want to use my space today to make a broader point about the law in general.

According to the National Center for Educational Statistics, in 2017-18, 7 million, or 14 percent of all public-school students, received special education services under the Individuals with Disabilities Education Act. Among those students, 34 percent had specific learning disabilities. Many are on IEPs, and even more are on 504 plans.

What’s the difference? An IEP is made available through the Individuals with Disabilities Education Act, and applies to students with 13 specific disability categories, including, for example, ADHD and autism. 504 plans are more generally available under the Rehabilitation Act and apply to any student with a disability that interferes with the child’s ability to learn in a general education classroom. Both IEPs and 504 plans require a team effort to work. That team always should include the parent(s) or primary caregivers.

Managing a child with special needs is hard. Employment obstacles should not make it harder. A parent shouldn’t have to worry about whether their special needs child is receiving the educational support they need to thrive in school and whether they will have a job when they return from a school meeting.

Bravo to the DOL for applying a common sense interpretation to the FMLA to conclude that attendance at IEP meetings “care for a family member … with a serious health condition,” which is “essential to her ability to provide appropriate physical or psychological care to [her] children.” No employee should have to choose between their family and their job, and this opinion helps ensure these protections.

Yet, with or without the FMLA, all employers should be offering these small amounts of time off. The law is a floor, not a ceiling.

I can hear the protesting cries: “We can’t give every employee time off for every little thing they need. They’ll take advantage of us.”

Seriously? An employee is not taking advantage of you by taking a few hours to meet with the educational team for their special needs child. If you are that worried that an employee is taking advantage of a situation, then deal with that employee.

But don’t deny the time off to all employees just because one employee has taken (or might take) advantage of you. It’s a performance issue specific to one employee. And, if employee leave abuse is a systemic problem throughout your workforce, you should take a look at what you’re doing wrong. Maybe it’s you and not your employees.

Employers, we should be better than this. We have to be better than this. We are better than this.

Don’t do the bare minimum that the law requires. Strive to do more. Make yourself an employer of choice for your employees. You’ll attract and retain better employees who will work harder for you. Don’t just try to reach the floor, but establish your own ceiling.

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EEOC Settlement Teaches Lesson on Extended Leaves of Absence as ADA Accommodation

Jon Hyman The Practical Employer

An employee tells you that he was recently diagnosed with prostate cancer and needs a few weeks off for treatment, surgery and recovery.

Assume either you’re not an FMLA-covered employer or that the employee is not FMLA eligible.

Do you …

(a) Fire him.

(b) Deny the request and force him to quit to have the surgery.
(c) Grant the request, but ask the employee to provide medical information supporting the disability, the need for time off, and an expected return-to-work date.

I hope you picked “c.”

An Atlanta distributor of industrial supplies chose “a,” and it cost them $75,000 to settle an EEOC lawsuit. From the EEOC’s news release:

“Medical leave is a widely recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Vallen fired him less than 24 hours before his surgery,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. …

Darrell Graham, district director of the Atlanta office, said, … “An employee should not be forced to risk termination for seeking leave to treat a medical condition, which can be a perfectly reasonable accommodation under federal law.”

Takeaways?

1. Unpaid time off can, and often does, qualify as a reasonable accommodation under the ADA, whether or not the FMLA applies. Moreover, if you fail to consider it as a reasonable accommodation, you’ve likely violated the statute.

2. Firing someone who asks for a few weeks off for cancer surgery is awful. It’s even more awful if you wait until the day before the surgery to do the firing.

3. Given the egregiousness of the violation, $75,000 seems light (although I don’t know all of the particulars of this employee’s damages).

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It’s Inexcusable for an Employer NOT to Have an Anti-discrimination Policy

Jon Hyman The Practical Employer

There are some employment policies that you can get away with not having. An anti-discrimination policy is not one of them.

In Hubbell v. FedEx SmartPost (decided Aug. 5 by the 6th Circuit), FedEx learned this lesson the hard way.

Sheryl Hubbell worked for Defendant FedEx SmartPost as a parcel sorter. A jury concluded that it retaliated against her after she filed an EEOC charge alleging that her manager demoted her and ultimately fired her after telling her that “females are better suited to administrative roles and males are better suited to leadership roles.” A jury awarded her $519,550, reduced by the trial court to $415,60 (plus an additional $157,733.75 in attorneys’ fees).

This employer made a lot of mistakes that caused this large judgment, but one of the biggest was that it did not have an anti-discrimination policy until 2013, one year after Hubbell claims she started suffering retaliation.

Several of Hubbell’s managers testified that FedEx had an anti-discrimination policy and that they had been trained on this policy. Jessica Benjamins, FedEx’s corporate Human Resources manager, also testified as to FedEx’s anti-discrimination policy. She testified that FedEx conducts annual online “diversity inclusion training” for managers. And she testified that it has long been FedEx’s policy not to discriminate. But FedEx only promulgated a specific policy on non-discriminatory hiring and promotion on November 26, 2013—after Hubbell was demoted and filed her first EEOC complaint.

So here’s your homework assignment. Open your employee handbook. Turn to the table of contents. Look for the policy that says, “Discrimination.” If you can’t find it, call me.

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When an Employee’s Religion Clashes With an Employer’s Dress Code

Jon Hyman The Practical Employer
A Muslim woman is suing the hospital at which she works as medical assistant, claiming she was told she needed a “note from the Quran” when she asked for an exception to the hospital’s dress code to wear a face covering during Ramadan.

The case, Boyd v. Cooper University Hospital, is pending in federal court in New Jersey. While it’s just filed and years from resolution, we can use it to learn how an employer should react when a employee dons religious garb in the workplace.

Title VII requires that an employer reasonably accommodate an employee’s sincerely held religious belief. This accommodation includes exceptions to an employer’s dress code or grooming policy.

According to the EEOC, an employer may not “automatically refuse to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy.”

Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business. … For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business.

There are limits, however, and an employer may “bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns … but only if the practice actually poses an undue hardship on the operation of the business.”

The employer should not assume that the accommodation would pose an undue hardship. While safety, security, or health may justify denying accommodation in a given situation, the employer may do so only if the accommodation would actually pose an undue hardship. In many instances, there may be an available accommodation that will permit the employee to adhere to religious practices and will permit the employer to avoid undue hardship.

While we have no idea how the Boyd case will play out, it nevertheless serves as a great illustration of the need for employers to consider exceptions to dress codes as reasonable accommodations for employees’ sincerely held religious beliefs, and the risks that occur when employers skirt this obligation.

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Do Workplace Bullies Violate OSHA?

Jon Hyman The Practical Employer

According to a study recently published in the Journal of Applied Psychology, bullying bosses make workplaces less safe.

Poor treatment from a boss can make employees feel that they’re not valued by a group. As a result, they can become more self-centered, leading them to occasionally forget to comply with safety rules or overlook opportunities to promote a safer work environment.

The headline made me think that if bullying contributes to an unsafe workplace, can it also violate OSHA? The answer is quite possibly yes.

While OSHA does not have a specific standard on workplace bullying, it does have a General Duty Clause. It requires that employers provide a workplace free from conditions that cause, or are likely to cause, death or serious physical harm to employees. It’s not a stretch to imagine bullying, or permitting the continued employment of a bully, to violate this duty.

Moreover, if bullying violates OSHA, then failing to have a policy against it, and properly training employees on that policy, also violates OSHA. It’s a potential triple whammy.

Arguing that OSHA covers bullying is not novel. At last year’s American Bar Association’s Labor and Employment Law Section annual conference, for example, one panel argued for OSHA coverage for sexual harassment. OSHA already covers workplace violence and the hazards that cause it, potentially including intimidation and verbal abuse. And, in 2011 OSHA adopted an anti-bullying policy for its own employees.

I’m not saying this is a clear-cut issue. In fact, I think it’s more likely than not that OSHA does not cover workplace bullying. But the fact that we’re having this conversation shows that this is an ongoing problem that employers need to address.

What can employers do? The Journal of Applied Psychology study offers three suggestions.

  1. Implement training programs that can improve leaders’ skills in interacting with their employees, so as to provide feedback and discipline in ways that are neither offensive nor threatening.
  2. Promote a more civil and engaged work environment that strengthens social bonds between employees and creates a buffer against the negative consequences of their boss’ bad behaviors
  3. Implement transparent performance evaluation processes so employees have less uncertainty about their social status in the workplace.
Or, you can just adopt my four-word workplace civility policy. Either way, tolerating and condoning abuse in the workplace, or worse yet, perpetrating it, cannot and should not continue, OSHA violation or no OSHA violation.
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#MeToo Hasn’t Killed the Office Romance, Just the Inappropriate Ones

Jon Hyman The Practical Employer

According to the National Review, #MeToo killed the office romance.

It must be a brave soul who dares to strike up a flirtatious conversation at the workplace microwave these days. Only ten percent of Americans report having met their mate at the office, a level that is half what it was in the 1990s.

The article goes on to quote Ella Whalen, writing for Spiked.

But in the post-#MeToo office, unless you send a memo to the guy you fancy, signed with your consent at the bottom, it is understandable that he wouldn’t want to make the first move for fear of being hauled before human resources. While most normal guys are able to tell whether a woman likes them or not, the erasure of any ‘grey area’ in workplace interactions means more and more people are feeling nervous about taking the first step.

At Spiked, Ella adds

Companies are responding to the sexual-harassment panic by banning alcohol from office parties and instituting policies on how long and how close personal interactions should be. Bosses who hug their employees are even making headline news. …

It’s time to rebel against these attacks on workplace romance. So wear your lowest top to your next board meeting and linger too long by your colleague’s desk. We need to make the workplace a humane environment where sparks can once again fly.

Clickbait headlines aside, #MeToo hasn’t killed the office romance; it’s just killed the inappropriate office romance. The boss dating his (or her) subordinate. The co-worker that won’t take “no” for an answer. The improper or otherwise improper texter or emailer.

There’s nothing inherently illegal about co-workers dating each other. In fact, according to a recent survey, 31 percent of people who met and started dating while working together ended up getting married (to each other).

Still, there’s a lot that can (and sometimes does) go wrong when employees get romantically involved.

  • Conflicts of interest.
  • Extortion and blackmail attempts.
  • Uncomfortable conversations with HR and company attorneys explaining your love life.
  • Have to describing your employee’s private affairs in a deposition or, worse, to a jury.
  • Office gossip.
  • Love contracts.
  • The loss of respect from co-workers and management.
  • Facing termination for not disclosing a romance.
  • Harassment and retaliation lawsuits when someone other than an employee’s paramour gets passed over for a promotion, fired, or otherwise thinks you are playing favorites.
  • Harassment or retaliation lawsuits by a jilted partner when the relationship goes south.

Which doesn’t mean that employees shouldn’t date; it just means that employers need to understand that permitting office romances amplifies the risk of claims of discrimination, harassment, and retaliation, especially when the parties involved are a manager or supervisor and his or her subordinate.

The question, then, isn’t whether these relationship are illegal (they’re not), but how much risk you, as an employer, want to assume in the event a relationships sours, or other employees feels shunned or mistreated as a result.

  • Ban them outright?
  • Ban them only between a manager/supervisor and his/her subordinate?
  • Permit them with a signed agreement (the “love contract”)?
  • Do nothing and permit them across-the-board?
I recommend avoiding the first option and not banning them outright because of a knee-jerk reaction to #MeToo. That’s just lazy employee management. Not all workplace relationships are toxic or unlawful, and if you’re diligent in your anti-harassment training and other efforts, you’ll be able to spot, catch, and handle the ones that are.